AFSCME Local 2910 and Library of Congress (Authority decision, August 4, 1982)

Final FLRA decision. This is a final Authority order. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

AFSCME Local 2910 proposed limiting who could be placed in Library of Congress bargaining-unit positions during reductions in force or priority placement. The Authority held that the proposal barred selection from other appropriate sources and interfered with management’s statutory selection right. It dismissed the petition on the merits.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2)(C).
• Outcome: Placement-source proposal held nonnegotiable; petition dismissed.
• Key point: Management had to retain the option of selecting from any appropriate source.

Full text (FLRA public release)

[ v09 p816 ]

09:0816(104)NG

The decision of the Authority follows:

9 FLRA No. 104

AMERICAN FEDERATION OF
STATE, COUNTY AND
MUNICIPAL EMPLOYEES,
AFL-CIO, LOCAL 2910
Union

and

LIBRARY OF CONGRESS,
WASHINGTON, D.C.
Agency

Case No. O-NG-470

DECISION AND ORDER ON NEGOTIABILITY ISSUE

THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), THE ISSUE PRESENTED IS
THE NEGOTIABILITY OF THE FOLLOWING PROPOSAL.

UNION PROPOSAL

ONLY EMPLOYEES WHO OCCUPIED BARGAINING UNIT POSITIONS IMMEDIATELY
PRIOR TO PLACEMENT MAY BE

PLACED INTO OTHER BARGAINING UNIT POSITIONS IN A REDUCTION-IN-FORCE
OR I; A SELECTION UNDER A

PRIORITY PLACEMENT PLAN. PERSONS FROM OUTSIDE A BARGAINING UNIT MAY
NOT BE PLACED INTO

BARGAINING UNIT POSITIONS EXCEPT PURSUANT TO ARTICLE XVIII, MERIT
EMPLOYMENT AND PROMOTIONS,

OF THE COLLECTIVE BARGAINING AGREEMENT.

UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATION.
UNDER SECTION 7106(A)(2)(C) OF THE STATUTE, /1/ MANAGEMENT HAS THE
RIGHT, IN FILLING POSITIONS, TO MAKE APPOINTMENTS FROM PROMOTION
CERTIFICATES OR FROM ANY OTHER APPROPRIATE SOURCE. IN THIS REGARD, THE
AUTHORITY HELD NEGOTIABLE A PROPOSAL WHICH ESTABLISHED A CONTRACTUAL
REQUIREMENT FOR MANAGEMENT TO USE THE COMPETITIVE PROCEDURE OUTLINED IN
THE MERIT PROMOTION PLAN TO IDENTIFY CANDIDATES WHO WILL BE CONSIDERED
FIRST FOR THE PLACEMENT ACTIONS SPECIFIED IN THE PROPOSAL, BUT NEITHER
REQUIRED A SELECTION TO BE MADE FROM THAT GROUP OF CANDIDATES NOR
PREVENTED MANAGEMENT FROM EXERCISING ITS STATUTORY RIGHT UNDER SECTION
7106(A)(2)(C)(II) TO MAKE A SELECTION FROM "ANY OTHER APPROPRIATE
SOURCE" ONCE MANAGEMENT HAD SATISFIED THE CONTRACTUAL REQUIREMENT.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 909 AND
DEPARTMENT OF THE ARMY, HEADQUARTERS, MILITARY TRAFFIC MANAGEMENT
COMMAND, WASHINGTON, D.C., 6 FLRA NO. 96(1981), RECONSIDERATION DENIED,
APR. 12, 1982. SEE ALSO NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL
REVENUE SERVICE, 7 FLRA NO. 42(1981).

THE EXPRESS LANGUAGE OF THE DISPUTED PROPOSAL IN THE PRESENT CASE, IN
CONTRAST, WOULD PREVENT THE CONSIDERATION AND SELECTION OF CANDIDATES
WHO WERE NOT IN BARGAINING UNIT POSITIONS PRIOR TO VARIOUS SPECIFIED
ACTIONS EXCEPT PURSUANT TO THE "MERIT EMPLOYMENT AND PROMOTIONS"
PROCEDURES OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. IN THAT
EVENT, EVEN IF, AS THE UNION CLAIMS, THE PROPOSAL WOULD NOT REQUIRE THE
AGENCY TO FILL BARGAINING UNIT VACANCIES WITH EMPLOYEES WHO HAD HELD
BARGAINING UNIT POSITIONS PRIOR TO ONE OF THE SPECIFIED ACTIONS, THE
PROPOSAL WOULD LIMIT THE AGENCY'S CONSIDERATION AND SELECTION OF OTHER
CANDIDATES TO ONLY THOSE CANDIDATES WHO APPLIED AND COMPETED UNDER THE
CONTRACTUAL "MERIT EMPLOYMENT AND PROMOTIONS" PROCEDURES. THUS, THE
FULL EFFECT OF THE PROPOSAL WOULD BE THAT, IN A REDUCTION IN FORCE OR
SELECTION UNDER A PRIORITY PLACEMENT PLAN, MANAGEMENT COULD SELECT ONLY
FROM CANDIDATES WHO APPLIED UNDER THE PARTIES' CONTRACTUAL COMPETITIVE
PROCEDURES OR FROM THOSE EMPLOYEES WHO HELD BARGAINING UNIT POSITIONS
PRIOR TO BEING AFFECTED BY A REDUCTION IN GRADE OR REDUCTION IN FORCE
ACTION. THE PROPOSAL, HOWEVER, WOULD NOT ALLOW A SELECTION TO BE MADE
FROM OTHER APPROPRIATE SOURCES. THUS, THE PROPOSAL WOULD DIRECTLY
INTERFERE WITH THE EXERCISE OF MANAGEMENT'S RIGHTS UNDER SECTION
7106(A)(2)(C)(II) TO CHOOSE AMONG CANDIDATES FROM ANY APPROPRIATE SOURCE
IN FILLING BARGAINING UNIT POSITIONS AND IS OUTSIDE THE DUTY TO BARGAIN.
/2/

ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR
REVIEW OF THE UNION'S PROPOSAL BE, AND IT HEREBY IS, DISMISSED. /3/

ISSUED, WASHINGTON, D.C., AUGUST 4, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ SECTION 7106(A)(2)(C) PROVIDES:

SECTION 7106. MANAGEMENT RIGHTS

(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE

AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--

(2) IN ACCORDANCE WITH APPLICABLE LAWS--

(C) WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
APPOINTMENTS FROM--

(I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION; OR

(II) ANY OTHER APPROPRIATE SOURCE(.)

/2/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE 0ASE, OHIO, 2 FLRA
604(1980), ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR
RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981), CERT. DENIED SUB
NOM. AFGE V. FLRA, U.S. , 102 S.CT. 1443(1982) (PROPOSAL PROVIDING
MANAGEMENT THE OPTION IN MAKING CERTAIN SELECTIONS TO USE COMPETITIVE
PROCEDURES WHICH ULTIMATELY PRESERVED THE RIGHT TO SELECT FROM ANY
APPROPRIATE SOURCE, AS AN ALTERNATIVE TO SENIORITY, WAS NEGOTIABLE).

/3/ IN VIEW OF THE DECISION THAT SECTION 7106(A)(2)(C) OF THE STATUTE
BARS NEGOTIATION ON THE PROPOSAL, IT IS UNNECESSARY TO CONSIDER THE
REMAINING CONTENTIONS OF THE AGENCY.